Form I-212: Application for Permission to Reapply for Admission into the United States after Deportation or Removal

 

Individuals previously removed from the U.S. are inadmissible and may not be re-admitted to the U.S. for a specified period of time UNLESS they apply for, and are granted, permission to reapply for admission. Permission to Reapply for Admission is applied for by submitting Form I-212 together with the appropriate supporting documentation and filing fee. Permission to Reapply for Admission is granted in the form of what is commonly referred to as an I-212 waiver.

 

Individuals who may benefit from this waiver include:

 

· Aliens previously removed subject to an order of removal entered by an Immigration Judge;

 

· Aliens who fail to timely depart under an order of voluntary departure issued by an Immigration Judge, whose voluntary departure is converted to an order of removal; and

 

· Aliens who have been subject to an order of expedited removal issued by CBP

 

Note that if a non-citizen timely left the U.S. pursuant to an order of voluntary departure, s/he does NOT need to apply for permission to reapply for admission.

 

Individuals may apply for an I-212 waiver in conjunction with an immigrant or nonimmigrant visa application. Canadians, and other visa-exempt individuals, may also apply for an I-212 waiver.

 

In many instances, an alien seeking permission to reapply for admission will also need to file an additional waiver application based on a specific ground of inadmissibility. For example, an individual who has been ordered removed from the United States after an Immigration Judge has made a finding of fraud under INA § 212(a)(6)(C)(i), which imposes a lifetime bar to entering the U.S., will require an I-212 waiver application AND either an I-601 waiver application (if the individual is applying for an immigrant visa) or an I-192 waiver application (if the individual is applying for a nonimmigrant visa). The I-212 application, if granted, would waive the prior removal. The I-601 or I-192 application, if granted, would waive the fraud grounds of inadmissibility.

 

However, a grant of an application to reapply for admission waives inadmissibility resulting from prior removal. An alien who receives an I-212 waiver (permission to reapply) and re-enters legally cannot thereafter be deported/removed again for the same acts that were the basis of the individual’s previous deportation/removal.

 

Specific time periods barring re-admission:

 

5 YEARS

• Aliens ordered removed in an expedited removal proceeding

• Aliens removed through removal proceedings initiated upon the alien’s arrival in the

U.S.

 

10 YEARS

• Aliens otherwise ordered removed after a removal hearing before an Immigration

Judge

• Aliens who departed the U.S. while an order of removal was outstanding

 

20 YEARS

• Aliens ordered removed more than once

 

NOTE: Aliens who have been convicted of an aggravated felony will require an I-212 waiver for life.

 

 

Requirements for an I-212 waiver:

 

There are no prerequisites such as a qualifying family member. No specific statutory standards to be met. Applications are considered on a case-by-case basis, and ALL relevant factors are considered.

 

Case law has set forth a list of “all pertinent circumstances relating to the applicant” that should be considered in determining whether an I-212 should be granted. These include, but are not limited to:

 

(1) The basis for deportation

(2) Recency of deportation

(3) Length of residence in the U.S.

(4) Moral character of the applicant

(5) His respect for law and order

(6) Evidence of reformation and rehabilitation

(7) Family responsibilities of applicant

(8) Inadmissibility to the U.S. under other sections of law

(9) Hardship involved to himself and others

(10) The need for his services in the U.S.

 

Matter of Tin, 14 I. & N. Dec. 371, 373-74 (RC 1974)

 

Congressional intent behind I-212 waivers was to give a previously deported alien a second chance. An I-212 waiver is a form of remedial relief rather than a punitive provision or statute. Matter of Lee, 17 I. & N. Dec. 275, 277 (Comm. 1978)

 

When considering length of time in the U.S., the Commissioner stated (in Lee) that he could only consider residence as a positive factor when the residence is legal, which means that residence is pursuant to a legal admission or adjustment of status as a permanent resident. Id. at 278.

 

Application Procedure:

 

Immigrant visa applicants who also require Form I-601 file Forms I-212 and I-601 concurrently with the U.S. Department of State at the immigrant visa interview at the U.S. Consulate with jurisdiction over the applicant's place of residence.  The consular officer must then forward the waiver application forms to the appropriate USCIS officer with jurisdiction over the area within which the consul is located.

 

Immigrant visa applicants who do not require Form I-601 file Form I-212 with the USCIS field office having jurisdiction over the place where removal proceedings were held. 8 CFR § 212 .2(d).  The same field office retains jurisdiction to adjudicate the Form I-212 waiver application.

 

Nonimmigrants should submit Form I-212 to the U.S Consulate with jurisdiction over the alien's place of residence.  The consular officer must forward recommendation for consent to reapply for admission and visa issuance to the CBP Admissibility Review Office ("ARO") for a decision.

 

Visa-exempt applicants/Canadians file Form I-212 with CBP at a U.S. Port of Entry (“POE”) or other designated preclearance office, who will then forward the application to the ARO for adjudication.

 

Applicants for Adjustment of Status file Form I-212 with the USCIS office having jurisdiction over the adjustment application, which is the same office to adjudicate the application.

 

Applicants who do not fall into one of the aforementioned categories, or who fall into a special category (such as a K-visa applicant or an applicant under VAWA), should refer to the DHS instructions and the filing chart at appendix 1, which can be found at the USCIS website.

 

LINKS:

 

Form I-212

 

Instructions for Form I-212 (including filing chart)

 

INA Sec. 212(a)(9)(A) [8 U.S.C. Sec. 1182(a)(9)(A)]

 

Matter of Tin

 

Matter of Lee